Heavy Issues Await Eight Member Supreme Court This Term

The 2016-2017 term of the Supreme Court of the United States will be heard by an eight member court since the Senate refuses to act on President Obama’s nomination of Merrick Garland to fill the seat vacated by Judge Antonin Scalia’s death. In several media appearances during the summer break, SCOTUS justices expressed concern over deadlock and said they would work hard to avoid that. It looks like Judge Roberts is doing that by only scheduling 45 cases for argument this term. But the issues brought before the Court are rarely cut and dried and deadlock remains a distinct possibility despite these efforts. A 4-4 decision means that the last court’s decision would stay in place. That has already happened on a few very important cases last term. Here are some of the cases that would most likely lead to possible deadlock:

(1)Buck v. Davis: At his sentencing for capital murder, Duane Edward Buck, the petitioner in this case, through his attorney called an expert witness who testified that Buck’s race (African-American) increased the likelihood of Buck’s “future dangerousness.” The jury imposed a sentence of death, rather than life imprisonment, in part on the basis of this testimony. I am not making this up. His defense attorney put on an expert to who said on cross examination that because the defendant is Black, that increases his likelihood for future violence. In seeking federal habeas relief, the district court denied Buck’s motion to bring an ineffective assistance of counsel (IAC) claim in order to challenge his sentence because Buck both failed to show that the outcome of his trial was prejudiced and that his claim did not merit the “extraordinary circumstances” necessary to permit habeas relief. The Court’s conservative core thinks habeas should be granted in only very limited scenarios and pushes the limits of the word “extraordinary”:it also believes and that as long as a lawyer is breathing the defendant has no IAC claim. The Court’s liberal core will likely be outraged at what the lawyer did and will want to overturn the decision below.

US Supreme Court(2)Moore v. Texas: Bobby James Moore was convicted of robbery and capital murder in 1980. In 2001, the Supreme Court of the United States held in Atkins v. Virginia that the Eighth Amendment’s prohibition against cruel and unusual punishment forbade execution of inmates that the court defined as “mentally retarded.” Moore alleges that his IQ and developmental scores bring him within the Atkins exemption, but the Texas Court of Criminal Appeals disagreed, holding that Moore’s mental faculties bring him within the statutory requirement for execution under Texas law. The question is whether a court should apply modern diagnostic tests an analysis or just use a raw IQ score as was done by the Texas Court here.

(3)McCrory v. Harris: A three-judge panel of the United States District Court for the Middle District of North Carolina ruled that two of the state’s 13 congressional districts, District 1 and District 12, constituted illegal racial gerrymanders in violation of the Voting Rights Act. The court determined that state lawmakers had placed disproportionately large numbers of black voters in these two districts, thereby diluting the impact of their votes. North Carolina Gov. Pat McCrory (R-N.C.) and the North Carolina State Board of Elections are challenging the district court’s decision. Under a full SCOTUS, the Court has weakened and held not longer applicable, major parts of the Voting Rights Act so right now this seems like a very likely 4-4 candidate.

(4)Lynch v. Morales-Santana:The U.S. government is seeking to deport Luis Ramon Morales-Santana pursuant to his multiple felony convictions. Morales-Santana argues that he is a U.S. citizen and cannot be deported. He claims that he has “derivative citizenship” through his biological father, a U.S. citizen at the time of Morales-Santana’s birth, and that the statutory provisions which the government believes deny recognition of his citizenship claim violate the Fifth Amendment’s guarantee of the equal protection of the law. Under the statute in effect when Morales‐Santana was born – the Immigration and Nationality Act of 1952 (the “1952 Act”) – a child born abroad to an unwed citizen mother and non‐citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child’s birth. But a child born abroad to an unwed citizen father and non‐citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child’s birth for a period or periods totaling at least ten years,with at least five of those years occurring after the age of fourteen. Mr. Morales-Santana would be a citizen under the unwed citizen mother section but not a citizen under the unwed citizen father section. He is arguing that is gender discrimination.

All four of these cases address central Constitutional issues and touch on hot-button topics like immigration, the death penalty and voting rights. I think about the frustration the lawyers on both sides of all of these cases will feel if the Court comes back 4-4 and their clients are left with no further recourse and no determination of the status of the law. Even the winners won’t really win because most of the lawyers will want a final resolution on the issue at hand and not have a different challenger come forward with some minor factual differences that may allow another bite at the apple. If the Senate keeps blocking Garland through next year, even if the new President nominates someone on Day One, we won’t have a full court until the middle of the Spring Term at best.